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James Nicita: Oregon City officials can ensure Icon develops in strict compliance with concept plan.

Recent editorials in this newspaper on the proposed Park Place Crossing development give the impression that the land-use hearings on this proposal have become a train wreck of sorts, and they criticize the developer, Icon Construction, for the proposal's shortcomings.

I agree in part, but respectfully dissent, in part. In my opinion, primarily liability for any train wreck lies with our city manager, Tony Konkol, in both his breach of his charter duties and his poor management and oversight of planning in Oregon City.

To frame my convictions, let me relate how I came to Oregon City. In 2006, I was working as a senior planner for a surveying and civil engineering firm that specialized in small infill subdivisions. I visited Oregon City to secure development approval for one such subdivision out along Maplelane Road. On these visits, I was attracted to Oregon City's historic character, and discovered the house in which I now live.

As a planner, both my firm and I had ethical duties to advance the interests of our developer clients. If our clients wanted to "swing for the fence" and maximize profit by squeezing as many lots into a subdivision as they could, we would use our talents and skills to do everything that was legally and ethically within the limits: ask for variances, argue for a certain interpretation of code, etc.

Sometimes, the reviewing authority would give a response akin to "You gotta be kidding." If they had discretion, planners in certain jurisdictions would tell us that the public interest was not served by our proposal, and they would flatly deny our application. Then we would go back and change the application, for example, to propose fewer lots. It was still profitable; it just wasn't as profitable as the "swing for the fence."

With the Park Place Crossing application, Icon and its consultants are "swinging for the fence," and in a manner that I believe not only contravenes the public interest, but also crosses the line into noncompliance with the Park Place concept plan. The proposal as submitted virtually destroys the central feature of the Park Place concept plan itself: namely, the little "Main Street" village along Livesay Road.

The proposal maximizes lots — and profit — by placing many extra lots directly on top of a large park mapped out in the concept plan. To compensate, the proposal shifts the park down to the north side of Livesay Road, and virtually wipes out the north side of the "Main Street" village.

Park Place developers now envision one rump corner of small retail, rather than the robust four-block Main Street village of mixed uses, including 2-3 floors of residential densities above street-level commercial, that the text of the concept plan describes.

COURTESY PHOTO: CITY OF OC - Park Place developers now envision one rump corner of small retail, rather than the robust four-block Main Street village of mixed uses that the text of the concept plan describes.

But the village is key to the livability and quality of life strategies of the entire concept plan: for example, by allowing residents to obtain a substantial variety of goods and services within walking/biking distance, and thereby reducing vehicle trip generation in and out of the neighborhood.

On the one hand, Icon's consultants are doing what they are obligated to do in "swinging for the fence," making arguments and offering evidence that their proposal complies with the concept plan, the comprehensive plan and city code. I get that. I've done that. On the other hand, however, Icon and its consultants have breached the limits.

But the train wreck results from the city's response.

In other jurisdictions, city staff would have told Icon, "You gotta be kidding," and would have rejected the application instantly as noncompliant, or alternatively, recommended denial in the staff report to the subsequent review authority.

Instead, Oregon City staff simply folded on the opening offer.

Worse, the staff report aggressively advocates for Planning Commission approval of the proposal, and tries to obscure how badly the proposal does not comply with the Park Place concept plan and municipal codes.

Here, the buck stops with the city manager, Tony Konkol, who is himself a trained and certified planner. The City Charter imposes on him the specific duty to "see that all ordinances are enforced." That would include plans, such as the Park Place concept plan, which are adopted via ordinance. I have a long list of ways in which I believe Konkol has breached this particular charter duty, including some that have compromised the integrity of the review of the Park Place Crossing proposal.

The citizens of Oregon City, through their elected City Commission representatives in enacting the ordinance adopting the Park Place concept plan, have mandated through the text of that plan that "main street" design standards will be promulgated for the "Main Street" village along Livesay Road.

Konkol served for years as the City's community development director. During that time, the Park Place concept plan's mandate for "main street" design standards went unfulfilled. Now as city manager, he is in ongoing breach of his duties under the charter to see that this particular aspect of the Park Place concept plan is enforced.

Konkol has also overseen the recent chaos in the planning division, including the recent high turnover, staff departures and formal citizen complaints.

Because all city staff are employees and agents of the city manager, the charter duty to ensure compliance with city code accrues to them as well. That should go without saying. Konkol is ultimately liable for the staff report's acceptance of the unlawful evisceration of the "Main Street" village.

I struggle to think that Kelly Reid, the staff planner assigned to the Park Place Crossing application, and her supervisor, new community development director Aquila Hurd-Ravich, would actually want to wipe out the "Main Street" village in the Park Place concept plan. Urban design was by far the most inspiring part of my planning education; I can't imagine that it would not have inspired theirs as well, at least to some degree.

But if their boss Konkol does not care about the "Main Street" village, (as his failure to bring forth the "main street" design standards suggests), and he gives his staff strict marching orders to secure approval of the current application notwithstanding its evisceration of the village, what are they to do?

The same could be said regarding two of Konkol's other employees, city attorney Bill Kabeiseman and the deputy city attorney, Carrie Richter. Outside of Oregon City, these two attorneys represent citizens groups in public interest land use cases, with a good track record. Ms. Richter, assigned to the Park Place Crossing hearings, trained as an architect prior to attending law school.

Unfortunately, unlike in most other cities, in Oregon City the city manager, rather than the city council, hires the city attorney. Therefore, in my opinion, within the "municipal corporation" of Oregon City, these city attorneys owe their loyalty and ethical duties to their true, actual, and primary client, i.e., the city manager — the one person with the power to fire them.

Because of this, I believe that in land-use hearings neither the City Commission, nor by extension the Planning Commission (or the Historic Review Board), ever get unbiased legal "advice" from the city attorneys. Instead, the city attorneys communicate to these bodies legal "advocacy," that is, the city manager's — and staff's — preferred interpretation of the code, in order to convince these bodies to decide matters in the way the manager wants.

To me it's all a big conflict of interest, but I certainly do not remember ever having heard the city attorneys (or their predecessor) disclose such a conflict of interest, or even raise the issue of whether such a conflict exists.

In a normal city, the city attorneys would shut down the Park Place Crossing "swing for the fence" application as grossly noncompliant with the Park Place concept plan: they would proactively raise a big red flag of noncompliance to staff, and failing that, to the final decision makers and the public, in a public hearing.

But in Oregon City the Park Place Crossing train, as if without a brakeman, jumped the tracks, and we now have the current train wreck.

My past experience as a private planning consultant practicing in other jurisdictions, as well as my often-frustrating experience both as an elected and as an appointed Oregon City official participating in panel reviews of initial applications and appeals of land use proposals, gave me the sense of a continuum. Some cities are hard-nosed, and reject initial land use applications regularly, unless an applicant meets the high bar of public interest.

Oregon City, unfortunately, is on the other end of the continuum. It seems to have a dispiriting lack of self-respect and self-esteem, to the point where caving on land use applications is the default, to the detriment of citizens' quality of life.

Oregon City's Planning Commission could begin the long twilight process of changing these old patterns. It could self-confidently look Icon in the eye and say, "You gotta be kidding." If the Planning Commission denied the unlawful "swing for the fence" application, Icon and its consultants would come back with a compliant one.

Ideally, approval of that subsequent application would be based on removal of the parkland away from the "Main Street" village on Livesay Road and would be conditioned upon 1) the adoption of the "main street" design standards required by the Park Place concept plan, and 2) compliance by all future development in the "Main Street" village with those design standards.

The very good news is, Icon can do it right. In fact, I would say that Icon is particularly suited to developing Park Place Crossing in strict compliance with the Park Place concept plan. When I think of what the "Main Street" village in Park Place would look like, the image that comes to mind is West Linn's historic Willamette district, where Icon constructed an extension to the district in architectural styles consistent with its historic character.COURTESY PHOTO: JIM NICITA - Icon constructed an extension to West Linn's Willamette district, in architectural styles consistent with its historic character.

Here in Oregon City, working within Historic Review Board review, Icon renovated the historic M.M. McCarver House and constructed surrounding homes that are in design delightfully sympathetic to the original home's 1850s board-and-batten style.

If Icon can do it right, there is no reason why Oregon City shouldn't do it right.

Former Oregon City Commissioner and Historic Review Board member James Nicita has earned degrees in planning and law.


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